FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Plaster Plus (Australia) Pty Ltd v Mummery [2024] FedCFamC2G 358
File number: MLG 2293 of 2023 Judgment of: JUDGE FORBES Date of judgment: 5 April 2024 Catchwords: BANKRUPTCY – review of decision of Registrar to make sequestration order – hearing de novo – whether requirements for making order have been established – whether court should exercise its discretion not to make order – whether there is sufficient cause not to make the order – whether petitioning creditor required to accept offer of payment plan – whether bankrupt reasonably anticipates receipt of funds – registrar’s decision affirmed and sequestration order made Legislation: Bankruptcy Act 1966 (Cth) s 40, 43, 52
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 254
Cases cited: Cassimatis v Australian Securities and Investments Commission[2016] FCA 131
Baker v Perpetual Company Limited [2012] FCA 553
Clapham v Commonwealth Bank of Australia [2013] FCAFC 84
Deputy Commissioner of Taxation v Bayeh, in the matter of Bayeh [1999] FCA 1223
Lavan Legal v Kenyon [2017] FCCA 2529
Li & Wu [2016] FCCA 2836
McIntosh v Shashoua [1931] HCA 56
Pattison v Hadjimouratis[2006] FCAFC 153
Pseudos v Commonwealth Bank of Australia (No 2) [2017] FCA 19
Division: Division 2 General Federal Law Number of paragraphs: 29 Date of hearing: 5 April 2024 Place: Melbourne Solicitor for the Applicant: SLF Lawyers Respondent: In person ORDERS
MLG 2293 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF SCOTT ANDREW MUMMERY, BANKRUPT
BETWEEN: PLASTER PLUS (AUSTRALIA) PTY LTD
Applicant
AND: SCOTT ANDREW MUMMERY
Respondent
ORDER MADE BY:
JUDGE FORBES
DATE OF ORDER:
5 APRIL 2024
THE COURT ORDERS THAT:
1.The Application for review of the decision of Registrar Edwards filed on 20 February 2024 be dismissed.
2.The orders of the Registrar are affirmed.
3.The Applicant for review (Mr Mummery) is to pay the petitioning creditor’s costs of these proceedings as agreed or taxed, to be paid from the bankrupt estate of the Applicant for review.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
(ex tempore revised from transcript)JUDGE FORBES
In this matter, the respondent, Mr Scott Andrew Mummery, seeks review of a decision of a registrar of the Court made on 1 February 2024. On that occasion, Judicial Registrar Edwards made a sequestration order against Mr Mummery (the Sequestration Order). The Sequestration Order also appointed a trustee of the bankrupt estate.
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- AGLC
- Plaster Plus (Australia) Pty Ltd v Mummery [2024] FedCFamC2G 358
- Case
- [2024] FedCFamC2G 358
- Decision Date
CaseChat Overview and Summary
The Court examined the material provided by Mummery, including his affidavits and the application for review, which cited grounds such as lack of notification of the Court date, his efforts to negotiate a payment plan, and his anticipation of receiving funds sufficient to cover the debt. The Court also considered the affidavits and materials provided by Plaster Plus, including evidence of service of the bankruptcy notice and the creditor’s petition, as well as affidavits and documents supporting the creditor's position. The Court found that Plaster Plus had adequately demonstrated that the statutory requirements for making the sequestration order were met, including that the debt was undisputed and that the necessary notices were properly served. The Court further considered Mummery's arguments and found them insufficient to warrant the exercise of discretion not to make the order, particularly in light of Mummery's failure to provide satisfactory evidence of his financial circumstances or the anticipated receipt of funds.
The Court ultimately decided that the requirements for making the sequestration order were established by Plaster Plus, and the discretion not to make the order should not be exercised in Mummery’s favour. Consequently, the registrar’s decision to make the sequestration order was affirmed, and the sequestration order was made against Scott Andrew Mummery.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In this matter, the respondent, Mr Scott Andrew Mummery, seeks review of a decision of a registrar of the Court made on 1 February 2024. On that occasion, Judicial Registrar Edwards made a sequestration order against Mr Mummery (the Sequestration Order). The Sequestration Order also appointed a trustee of the bankrupt estate. On 20 February 2024, Mr Mummery filed an application for review of the Sequestration Order. He seeks the discharge of that order. The petitioning creditor, Plaster Plus (Australia) Pty Ltd (Plaster Plus), seeks that his application be dismissed. Mr Mummery relies on the following material which I have read and considered: (1)application for review of Registrar’s decision to make a sequestration order filed on 20 February 2024 (Review Application); (2)affidavit of Scott Andrew Mummery filed on 20 February 2024; and (3)affidavit of Scott Andrew Mummery filed on 25 March 2024. Mr Mummery seeks to review the Sequestration Order and an order to overturn the bankruptcy. The Review Application itself is not clear about the legal basis for the review. In his affidavit of 20 February 2024, Mr Mummery cites three possible grounds for the review - the first one being that he had not been notified about the Court date, secondly, that he had been trying to put his indebtedness on a payment plan for a long time, and, thirdly, that he is about to receive money which is greater than the petitioning creditor’s debt. The more recent affidavit that Mr Mummery filed on 25 March 2024 deposes to Mr Mummery’s current financial circumstances, other personal circumstances, and the unfortunate events which affected his health and resulted in the demise of his company’s operations. In that affidavit, Mr Mummery refers to his wish to have the debt put on a payment plan. In opposing Mr Mummery’s Review Application, the petitioning creditor Plaster Plus relies on various affidavits that were before Registrar Edwards, and further materials which have been filed more recently. Those materials include the following: (1)affidavit of service of the bankruptcy notice sworn on 22 November 2023;(2)affidavit verifying the creditor’s petition affirmed on 18 December 2023; (3)affidavit of service of the creditor’s petition sworn on 16 January 2023, which I note annexed various documents, including the creditor’s position, bankruptcy notice, and correspondence from the creditor’s solicitors, which drew the attention of Mr Mummery to the hearing that was to take place before the Registrar on 1 February 2024; (4)affidavit of debt sworn on 31 January 2024; (5)affidavit of Ms Emily Everett affirmed on 2 April 2024.; and (6)outline of submissions filed on 4 April 2024. The background, as set out in the outline of submissions filed by the respondent, is not seriously contested. Briefly, Plaster Plus is the creditor in this proceeding. On 19 December 2023, Plaster Plus filed a creditor’s petition seeking a sequestration order under section 43 of the Bankruptcy Act 1966 (Cth) (the Act) for a debt in the amount of $12,863.06.